For liability to be established one of the principle elements is that of whether a duty of care was owed by the defendant to the claimant, such as in the case of Donoghue v Stevenson [1932] A.C. 562.
For liability to be established one of the principle elements is that of whether a duty of care was owed by the defendant to the claimant, such as in the case of Donoghue v Stevenson [1932] A.C. 562. The immediate duty of care that should be recognised is that of a driver to other road users. This requirement has been established by the necessity for all drivers to have insurance against third party risks, as per s 145 of the Road Traffic Act 1988. This duty has been given extensive judicial recognition, for example in the case of Nettleship v Weston [1971] 3 All ER 581 Lord Denning stated ".... The driver owes a duty of care to every passenger in the car, just as he does to every pedestrian on the road"1. Similarly from this obiter it would seem that Bob owed a duty of care to Julia as well. In Nettleship several judges made mention of the possibility of "Different considerations [that] may, indeed exist when a passenger has accepted a lift from a driver whom the passenger knows to be likely, through drink or drugs, to drive unsafely."2 However since this case, a statutory duty of care has been created by the Road Traffic Act 1988, by virtue of s 149, which bars any possible waiver of liability towards a passenger. However Julia only suffers minor injuries in the accident itself, so she may not wish to sue Bob, due to the cost of litigation.
It could be said that Stan, the landlord of the pub, could have easily acted to prevent Bob and Julia driving home that night - Does Stan owe them both a duty of care? English law does not, with exceptions, typically impose a duty on persons to act to prevent harm to a third party. An exception to this rule was found in Home Office v Dorset Yacht Co [1970] 2 All ER 294, where it was found that borstal-training officers did owe a duty of care to prevent harm caused by the escape of borstal trainees, to third party property in the immediate vicinity. I would distinguish this case from the one in hand for several reasons. Firstly, in the Home Office case third parties in the custody of the defendants caused the damage. It could hardly be said that Bob and Julia were under Stan's supervision, let alone custody. Secondly, it would be unlikely that any court would impose a duty of care upon a landlord for reasons of public policy, since it would not be practicable for a landlord to monitor each and every person's ability to drive. In addition, a landlord has no statutory powers to prevent a person from driving when unfit to do so. Judicial acknowledgement has been given to this non-existence of a duty of care. Beldam LJ states although obiter, "I can see no reason why it should not be fair just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drink."3
So far it has been established that Bob owed a duty of care to both Max and Julia for their injuries directly sustained from his negligent driving. Turning to Bob, who would not be able to sue Stan in tort and obviously has no claim against Max who has not acted negligently, there may be another he can sue. We do not know who is the owner of the vehicle, but should Julia be the owner she may be liable to Bob. Mullis and Oliphant argue, "The owner should bear some portion of the responsibility, subject of course ...
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So far it has been established that Bob owed a duty of care to both Max and Julia for their injuries directly sustained from his negligent driving. Turning to Bob, who would not be able to sue Stan in tort and obviously has no claim against Max who has not acted negligently, there may be another he can sue. We do not know who is the owner of the vehicle, but should Julia be the owner she may be liable to Bob. Mullis and Oliphant argue, "The owner should bear some portion of the responsibility, subject of course to a deduction for the drivers contributory negligence."4 An obiter by Goff LJ supports such an argument: "I do not rule out the possibility that there are other circumstances in which a person may be liable in negligence for the wrongdoing of a third party.... For example, where he hands over a car to be driven by a person who is drunk... who then runs over the plaintiff"5
Following the collision, Bob, Julia and Max all develop subsequent conditions. Although Bob's condition may seem the most severe, apart from the possibility of suing Julia, the tort system would not provide any compensation. Instead, he would be partly compensated by social security incapacity benefits, which provides for need rather than (estimated) lost wages, as compensation through the tort system does.
In the cases of Julia's subsequent illness and Max's subsequent accident, it has to be decided whether the second accident was too remote for Bob to be liable. The principle case for remoteness of damage is The Wagon Mound [1961] 1 All ER 404. In this case it was deemed that it was not reasonably foreseeable that the oil spillage would catch fire, thereby damaging the claimant's wharf. Viscount Simmonds stated, "... The essential factor in determining liability is whether the damage is of such a kind that the reasonable man should have foreseen."6 Using this principle it appears that Bob was not liable to Julia for her contracting influenza - people do not usually contract influenza through being in a car collision. Turning to Bob's fall, in my opinion, it is harder to distinguish whether Bob should be liable. With regard to this the 'thin skull rule' used in Smith v Leech Brain & Co [1961] 3 All ER 1159, may prove of some use. This case affirmed the theory that "... a tortfeasor takes his victim as he finds him"7 It is therefore enough that the initial accident was foreseeable, even though the resulting harm, in the case of Max his reliance on pain killers and alcohol which caused his fall, was not foreseeable. We know that Bob's negligent driving was the sole reason for Max's injury that caused him to be reliant on painkillers and alcohol (Max's pre-existing susceptibility) so by applying the thin skull rule it could place the liability of the second accident on Bob.
Another point to consider is that of whether Bob's negligence is a 'cause in fact' of each of the second accidents. As Mullis and Oliphant state "In the cases, it is generally accepted that the law puts aside the 'but for' test and addresses the more fundamental matter of whether the factor in question was necessary to complete a set of conditions together sufficient to produce the result."8 The decision taken in Bonnington Castings v Wardlaw [1956] AC 613 is current English law. Therefore it would be sufficient to show that the results of Bob's negligence have made a material contribution to the injuries that Max has sustained in the second accident, even though Bob could not have done anything to prevent Max's fall. It is doubtful whether the Bonnington case provides any support to Julia's case. Bob's negligence only exposed Julia to an increased risk of contracting influenza, which can be contracted in any circumstances (you can obviously not sue a person for passing the influenza virus on!) Wilsher v Essex Area Health Autority [1988] 1 All ER 871, overturned Lord Wilberforce's methodology in McGhee v National Coal Board [1972] 3 All ER 1008, that a material increase in risk would be sufficient hold the defendant liable.
The concept of novus actus interveniens - "the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by the defendant, negatives causal connection"9 proves useful when considering Max's case. In Mckew v Holland & Hannan & Cubitts (Scotland) LTD [1969] 3 All ER 1621, it was held that the claimant had placed himself in a particularly risky situation and this was novus actus interveniens. For this case to be used as precedent it would have to be proved by the defence that Max acted with complete disregard for his personal safety. It seems more likely that the doctrine of contributory negligence 1945 would take effect, whereby the damages awarded are reduced by the proportion of the claimant's own negligence, such as in the case of Sayers v Harlow UDC [1958] 1 WLR 623 where compensation was claimed for injuries sustained from climbing out of a public lavatory, when the lock would not open. The claimant placed his foot on the lavatory roll dispenser, which revolved causing him to fall. Damages were awarded, but they were reduced due to the claimant's contributory negligence.
An intervening natural event, such as Julia's contraction of influenza, may be sufficient to break the chain of causation. The case of Carslogie Steamship co. v. Royal Norwegian Government [1952] AC 292 involves a ship that suffered further storm damage following a collision with the negligent governments ship. Here it was held that the defendant was not liable for the damage caused by the storm, as it was an act of god and only coincidental that it happened en route for repairs. It would seem therefore that Julia's contraction of influenza was simply her bad luck, a result that is clearly backed by the lack of a 'cause in fact'.
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Bibliography
A Mullis & Ken Oliphant, Torts, 2nd edt, 1997, Macmillan press, Basingstoke.
Nettleship v Weston [1971] 3 All ER 581, at 587, per Denning M.R.
2 Nettleship v Weston [1971] 3 All ER 581, at 594-595 per Megaw L.J.
3 Barrett v Ministry of Defence [1995] 3 All ER 87, at 95 per Beldam LJ
4 A Mullis & K Oliphant, Torts, 1997, p. 78
5 Perl (Exporters) v Camden LBC [1984] QB 342 at 359 per Goff LJ
6 The Wagon Mound [1961] 1 All ER 404 at 415, per Viscount Simmonds.
7 Smith v Leech Brain & Co, [1961] 3 All ER 1159 at 1162, per Lord Parker CJ
8 A Mullis & K Oliphant, Torts, 1997 p. 108
9 Hart & Honoré, Causation in the law, 1985, 2nd edt, Oxford University press, p.136, as quoted by Mullis & Oliphant, Torts, 1997, p. 116
Problem Question on duty of care and The Road Traffic Act
![For liability to be established one of the principle elements is that of whether a duty of care was owed by the defendant to the claimant, such as in the case of Donoghue v Stevenson [1932] A.C. 562.](https://mbt-essays-prod-public.s3.eu-west-1.amazonaws.com/93070/listing/93070_1.jpg)
